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Can the Grandfather clause be applied to homeowners

Customer Question
associations? We have had...
Can the Grandfather clause be applied to homeowners associations? We have had a gate in the fence separating our back yard and the practice green for the last 12+ years. The association is replacing all fencing in the development and will not allow the gate.
JA: Because real estate law varies from place to place, can you tell me what state the association is in?
Customer: Las Vegas, NV
JA: Has anything been filed or reported?
Customer: Probably only the Association charter 20+ years ago.
JA: Anything else you want the lawyer to know before I connect you?
Customer: What else would be important?
Submitted: 1 year ago.Category: Legal
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Answered in 9 minutes by:
11/11/2016
Lawyer: Barrister, Attorney replied 1 year ago
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 38,725
Experience: 17 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
Verified

Hello and welcome! My name is ***** ***** I am a licensed attorney who will try my very best to help with your situation or get you to someone who can. There may be a slight delay in my responses as I research statutes or ordinances and type out an answer or reply, but rest assured, I am working on your question.

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Can the Grandfather clause be applied to homeowners associations?

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The problem with this is that HOAs are administrative organizations, not criminal or civil ones.. So when a homeowner violates a rule or CCR, it is a brand new violation every day that it exists. So a statute of limitations never runs on a Board enforcing the rules for violations.

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With that said, there are some equitable defenses that an owner could use to defend if this got to a point where the HOA fined and then filed suit to collect. The owner could argue "Laches" which is a legal doctrine that says if X is aware of a violation and doesn't take any action to enforce their authority to penalize Y for violating it, then they eventually lose that right. A very similar doctrine is "waiver". Another equitable doctrine is "detrimental reliance" where if X took a position (or failed to object) to something Y was doing, then X is then later prevented from changing that position if Y would be "injured" by them doing so. (i.e. taking down the gate)

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So you can fight them, but it really depends on how far you are willing to take it considering that legally, every day the violation exists is a new violation and all owners agreed to be bound by the rules, Bylaws and CCRs when they bought into the neighborhood..

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It might be easier to just take it down... leave it down for a few weeks, and then quietly reinstall it..

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thanks

Barrister

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Customer reply replied 1 year ago
The president of the board of directors of the association has informed me that if we put a date in the new fence they would remove the panel with the gate reinstall a new panel and we would be charged
Lawyer: Barrister, Attorney replied 1 year ago

Ok, then you would be kind of rolling the dice here if you did so that they wouldn't actually follow up on their threats..

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I can only tell you that from a purely legal perspective, you are in violation of the rules if they prohibit you installing a gate without approval and you have one or install one later..

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But whether they would actually come after you for doing so, or would continue to ignore it as they have done in the past, I can't say..

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thanks

Barrister

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Barrister
Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 38,725
38,725 Satisfied Customers
Experience: 17 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs

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